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Monday, May 7, 2012

Why I Joined The Board of Lambda Legal

This past weekend, I was elected to the Board of Directors of Lambda Legal, a national legal organization dedicated to achieving full equality for LGBT people. I thought carefully before I agreed to begin the process as a potential Board candidate about the state of our fight for civil rights, and I would like to share my thoughts.

It is a critical time for our civil rights movement. We have made great strides towards social, political and legal equality, in ways that were practically unthinkable when I was growing up. I remember being a young person a half century or so ago, thinking that I must be mentally ill because of who I was, hoping that I could hide myself forever and ever, and praying to God for a cure. The idea that I, as a transgender person, could be entitled to respect for my gender identity and sexual orientation, that I could be protected from discrimination under the Constitution and laws of our country, that I could marry a person I love regardless of our sexes, that I could serve in the military or be safe from having my son being taken away by a court, and a million other degradations to which we have been subjected - these were not thoughts that I could have had. But I did not know, when I was ten years old, that Lambda Legal was being formed in a small New York City apartment in 1971, and that it would one day come to champion respect under the law for me and mine in the highest courts in the land.

In fact, even the idea of such an organization was repugnant to the State of New York, and the attempt of William J. Thom to incorporate the organization was rejected, his application unanimously denied by the New York State Appellate Division court on the grounds that its proposed activities did not fulfill the requirements of law in that they were neither "benevolent" nor "charitable.". It took two years of litigation for the decision to be overturned by the highest court in New York State.

We have come a long way. We also have a long way to go. Lambda is going to be a crucial component of future progress.

Forty years later, we are poised, as never before, to achieve full equality on many fronts. There are a lot of organizations now working on various aspects of that fight. And yet, during the past decade of my second career as an academic in the field of law, I have seen no other organization that has been as effective, as progressive and as inclusive of our whole community as Lambda Legal.

Lambda Legal first received my full attention in 2007, when the proposed federal Employment Non-Discrimination Act (ENDA) was introduced into Congress to prohibit not only workplace discrimination based on sexual orientation, but also that based on gender identity. This was hailed as a progressive move and had occurred because of the urging of many organizations, but the truth was that the prime movers in the gay community didn't really have their hearts in it. The inevitable push came to jettison gender identity from the bill as a bridge too far. Well-known gay political advocates came out against the "trans-jacking" of ENDA, and argued that trans people shouldn't hold back gay protections.

Lambda Legal took the time and effort to make a well-studied and highly persuasive legal argumentagainst removing gender identity, discussing the intersection of sexual orientation and gender identity in regard to workplace protections. But my mouth dropped open when I saw these clearly-worded lines from such a highly-regarded national organization:

"It simply is wrong for lesbians, gay men and bisexuals to seek protection for themselves and leave transgender people in the dust...For gay people to sacrifice transgender people to get protection only for themselves would be wrong."

It would be wrong. Clear and simple. One cannot found a movement for social justice on social injustice. The argument was so persuasive that a well-known gay law professor published a denunciation (to which I responded, but no one was listening to me). Rep. Barney Frank had to take to the floor of the House to excoriate Lambda and defend his actions in dropping gender identity. I was personally devastated when gender identity was, nonetheless, removed from the bill, in a way that is painful now to contemplate, and it fueled my later activism. In the next Congress, when the effort to pass ENDA came up again, gender identity was retained in the bill, due in great measure to the clear legal reasoning that Lambda had championed.

Since that time, I have followed the activities of Lambda Legal, and have been astounded by how much care they have taken on trans issues. Lambda has been involved in hundreds of cases (469, according to Lexis, starting in 1974). They started being active in trans issues in the late 90s, starting withHernandez-Montiel v. INS, where they were successful in obtaining asylum for a trans woman from Mexico, who had been subjected to official persecution because of her gender identity. From that time on, there is a consistent track record of cases in which Lambda has represented trans people and submitted "friend of the court" briefs, in which it brings its expertise to bear to advise the courts on the proper interpretation of the law. They've been involved in so many cases involving trans people that I cannot list them all here without boring you to tears, and you can see a partial list here.

The legal expertise of the Lambda Legal staff is extraordinary, particularly on trans issues. As someone whose business it is to understand trans legal issues, I am consistently impressed by what I see and hear from the organization. When Legal Director Jon Davidson gave his review at the Board meeting this past weekend of the accomplishments and future priorities of the organization, I was deeply moved by his and the organization's commitment to trans civil rights. More importantly, the strategy discussed demonstrated a clear understanding of the strengths and weaknesses of the state of law regarding trans rights. Any lawyer can file a case. But some lawyers are better than others, and the lawyers at Lambda are strictly top-of-the-line. Many graduated from top law schools, worked at major firms and non-profits, and have long years of experience before they joined Lambda. I'm against elitism. But when I've got to go to court, I'm for getting the best lawyer I can get. The importance of that cannot be underestimated, because bad precedents have haunted us for decades. It's not enough to file a legal case. One has to understand how it fits with the rest of the law, and the benefits and risks of pursuing litigation.

Most recently, Lambda has won stunning victories regarding trans employment rights and the rights of trans incarcerees to health care. It's clear to me that Lambda's victory in the Glenn employment case in the 11th Circuit was very helpful in the recent ruling obtained by the Transgender Law Center from the United States Equal Employment Commission that the federal Civil Rights Act of 1964 prohibits gender identity discrimination. But there will be pushback, and I know that Lambda will be there to jump into the breach. It is also pursuing a very important case in Oregon, suing for the right of a trans employee to receive health care from his employer's health insurer free from exclusions based on gender identity. That's one to watch.

My interest in Lambda Legal is not limited to the trans cases. Indeed, it is impossible to separate the interests of trans people from the organization's other priority areas of workplace fairness, fair courts, family protections, youth, HIV, seniors, government misconduct and Proyecto Igualidad. Each of these areas affect all of us in the LGBT community, whether trans, queer, intersex, lesbian, bisexual, and gay. There is no doubt that Lambda Legal has been extraordinarily effective in fast forwarding the law on every front. To keep up with the legal developments, check out Lambda's blog.

When I am approached about working with community organizations, my first question is whether there is a track record of trans inclusion in a real and meaningful manner, or whether it's a show. In Lambda's case, I already knew the answer to that. The more difficult question was when could I possibly fit in the extra work required? I have so many projects going, and constant requests for more. I had vowed to cut back. Just say no. But I am not ashamed to say I love the law, though it doesn't always love me back, and it was hard to resist such an accomplished and courageous group of top-notch lawyers. Frankly, my credentials and accomplishments are nowhere near those of many of the Board members. That I would get to sit at a table with Paul Smith, who argued Lawrence v. Texas? Astounding. (He was extremely gracious and welcoming to me, I must note, as was everyone, many of whom came to introduce themselves and made me feel right at home.) This is a very smart bunch, deeply committed to the cause, and after years of mind-numbing academic meetings, it was refreshing to be with people who could speak so concisely and directly to the point and agree on action with so little fuss.

I am proud to serve as the first trans member of Lambda's Board, and I hope to serve the organization and our community well. Lambda, I am convinced, is going to be a critical part of the equation of our future progress as a civil rights movement. It is also my hope that I can persuade other trans lawyers to get involved with the organization. We've made important political progress, but, as shown by the experience of Lambda Legal in the courts, it helps to have a smart lawyer at your side.

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